The Public Prosecutor in the High Iraqi Court et al. v. Saddam Hussein Al Majeed et al.

Court	Iraqi High Tribunal (First Criminal Court), Iraq
Case number	1/E First/2005
Decision title	Judgment
Decision date	5 November 2006
Parties	Public Prosecutor Saddam Hussein Majid Barazan Ibrahim Hassan Taha Yassin Ramadan alias Tah al-Jazrawi Awwad Hamad al-Bandar al-Saadoun Abdullah Kadhim Ruwayid alias Mizher Abdullah Kadhim Ruwayid al-Mashaikh Ali Dayeh Ali al-Subaidi Muhammad Azzawi Ali al-Marsumi
Categories	Crimes against humanity
Keywords	child, detention, enforced disappearance, forcible transfer of population, murder, persecution, torture
Links	Judgment

Summary

In July 1982, a convoy carrying the President of Iraq, Saddam Hussein, was fired upon by unknown individuals as it was visiting the town of Al Dujail. In response to what the President perceived as an assassination attempt but which did not injure anyone, a systematic attack was launched against the residents of Al Dujail as they were fired upon from aircraft and their property was destroyed. A Revolutionary Court sentenced 148 residents to death without trial for their alleged involvement in the assassination attempt. Of those that were hanged, the Tribunal identified a number of children. Countless others died in detention, as a result of torture at the hand of the Investigation Services, or from malnutrition, lack of access to medical care and poor hygienic conditions.

The present decision of the Iraqi High Tribunal convicted seven of the indicted defendants for crimes against humanity in connection with the attack on Al Dujail. Most notably, Saddam Hussein himself was convicted and sentenced to death by hanging along with his brother, Barazan Ibrahim, the head of the Intelligence Services.

Procedural history

On 31 July 2005, the defendants, Saddam Hussein Majid, Barazan Ibrahim Hassan, Taha Yassin Ramadan, Awwad Hamad al-Bandar, Mizher Abdullah Kadhim Ruwayid, Abdullah Kadhim Ruwayid, Ali Dayeh Ali, and Muhammad Azzawi Ali al-Marsumi were indicted on 10 charges of crimes against humanity: wilful killing, extermination, enslavement, displacement or forcible transfer of the population, imprisonment, torture, sexual violence, persecution, enforced disappearance and other inhumane acts (p. 5).

Related developments

The decision was appealed to the Appellate Chamber of the Iraqi High Tribunal.

By a decision of 26 December 2006, the sentences were confirmed with the exception of Taha Yassin Ramadan whose sentence was increased to the death penalty.

Pursuant to the sentence of the Iraqi High Tribunal, Saddam Hussein was executed by hanging on 30 December 2006. See The Washington Post, 'Saddam Hussein is Put to Death', 30 December 2006.

Taha Yassin Ramadan was executed on 20 March 2007.

Legally relevant facts

On 8 July 1982, the president’s convoy was travelling through the town of Al Dujail when it was fired upon from a position behind a tree in one of the town’s orchards. As a result of the incident, the town was placed under the control of a Special Republican Guard under the authority of the defendant, Barazan Ibrahim Hassan, the brother of then President Saddam Hussein, another of the defendants in the present case (pp. 8-9).

The town was encircled by members of the army, special security forces, intelligence groups and popular army forces. Shots were fired from warplanes and helicopters at the orchards and some of the interior streets of the town.

Although no-one was injured in the attack upon the President’s convoy, the President nonetheless commissioned Barazan Ibrahim to discipline the residents of Al Dujail. As a result of this operation against Al Dujail, some 149 people were killed and property was destroyed, including homes, furniture, cars, water pumps, as well as the aqueducts that drew water from the Tigris and irrigated the orchards (p. 8).

148 Al Dujail residents were sentenced to death in sham trials before the Revolutionary Court in 1984, including children. The defendant Awwad al-Bandar served as the Court’s President (pp. 62-63).

Many more were imprisoned at the Ba’ath party headquarters in Al Dujail, at Abu Ghraib prison, at the Hakimiya jail and the desert detention centre of Lea. Some died of torture administered at those locations (p. 97). Others died as a result of the poor conditions including lack of proper hygiene and food (p. 103).

Core legal questions

Is the defendant, Saddam Hussein, entitled to immunity from criminal proceedings by virtue of his former position as the President of Iraq and Chairman of the Revolutionary Command Council?
Under what conditions may a superior be held responsible for the acts of his subordinates?
Can a defendant be held criminally responsible for wilful killing where the deaths of the victims in question resulted from their circumstances rather than a particular physical act?

Specific legal rules and provisions

Articles 47 to 54, 406 and 410 of Penal Code No. 11.
Article 40 of the Interim Iraqi Constitution.
Iraqi Code of Criminal Procedure No. 23.
Articles 1, 12 and 15(1) and (2) of the Supreme Iraqi Criminal Tribunal Law No. 10.

Court's holding and analysis

Whilst Article 40 of the 1970 Iraqi Interim Constitution provides that Saddam Hussein, as the chairman of the Revolutionary Command Council, enjoys full immunity, there is no immunity in respect of crimes against humanity, and even in the event that it did, the present Iraqi government has eliminated it with the fall of the regime. This conclusion is in accordance with judicial precedent from other international tribunals and with Article 15 of Law No. 10 which denies immunity before the present tribunal (p. 26).

A superior is held criminally responsible for the crimes committed by his subordinates if he knew or had reason to know that the subordinate had committed, or was about to commit such acts and the superior failed to take the necessary and reasonable measures to prevent such acts or to refer the matter to the competent authorities for investigation and prosecution (p. 28).

A number of al-Dujail residents died at the prisons or detention centres from malnutrition, lack of medical care and poor hygienic conditions. It is the opinion of the Tribunal that those who ordered, made or supervised arrests or detained or supervised the detention of these individuals is responsible for their wilful killing. In accordance with Article 410 of Penal Code No. 11 (1969) and international criminal law, wilful killing is perpetrated by anyone who caused the death of one or more individuals. As such death need not be the result of beatings but circumstances in which it is assumed that no-one living in those conditions would survive (pp. 103-104).

All of the defendants were convicted with the exception of Muhammad Azzawi Ali (pp. 269-270) and received sentences ranging from death (for Saddam Hussein, Awad al-Bandar, and Barzan Ibrahim) to 15 years’ imprisonment (for Mizhar Abdullah Ruwayyid, Ali Dayih Ali, and Abdallah Kazim Ruwayyid)
(pp. 271-272).